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HomeMy WebLinkAboutMinutes - Board of Adjustment - 1/27/2004 MINUTES ORO VALLEY BOARD OF ADJUSTMENT REGULAR SESSION JANUARY 27, 2004 ORO VALLEY TOWN HALL COUNCIL CHAMBERS 11,000 N. LA CANADA DRIVE REGULAR SESSION at or after 3:03 p.m. CALL TO ORDER ROLL CALL PRESENT: Colleen Kessler, Chair Cindy Lewis,Vice Chair Greg Marlar,Member Bill Adler,Member Bart Schannep, Member EXECUTIVE SESSION AT OR AFTER 3:07 p.m. Member Adler recused himself from Item 1 and the Executive Session because the existence of the communication itself may create the appearance of partiality. MOTION: A MOTION was made by Member Adler and SECONDED by Vice Chair Lewis to go into Executive Session at 3:07 p.m. for the following purpose. Motion carried, 5-0. 1. PURSUANT TO ARS § 38-431.03(A)(3), DISCUSSION WITH THE TOWN ATTORNEY FOR LEGAL ADVICE IN CONNECTION WITH CASE NO. OV10-03-07 BARRY GILLASPIE, 8801 N. RIVIERA DRIVE, ORO VALLEY,AZ 85737,REQUEST FOR AN APPEAL OF ZONING CODE INTERPRETATION ZCI03-04, PERTAINING TO FREE- STANDING BUILDING PADS WITHIN THE ORACLE ROAD SCENIC CORRIDOR DISTRICT,ISSUED BY THE PLANNING AND ZONING ADMINISTRATOR. (PARCEL #225-12-065A) LOCATED ON THE NORTHEAST CORNER OF ORACLE ROAD AND HARDY ROAD, ORO VALLEY, AZ 84737. Motion carried, 5-0. MOTION: A motion was made by Member Schannep and SECONDED by Vice Chair Lewis to go out of Executive Session at 3:47 p.m. Motion carried, 4-0. RESUME REGULAR SESSION AT OR AFTER 3:56 p.m. CALL TO ORDER ROLL CALL PRESENT: Colleen Kessler, Chair Cindy Lewis,Vice Chair Greg Marlar, Member Bart Schannep, Member 01/27/04 Minutes, Board of Adjustment 2 RECUSED: Bill Adler, Member MINUTES Approval of the Minutes of October 28, 2003 MOTION: Member Schannep moved to APPROVE the October 28, 2003 minutes as presented. Motion SECONDED by Vice Chair Lewis. Motion carried, 5-0. PUBLIC HEARINGS: 1. CASE NO. OV10-03-07 BARRY GILLASPIE, 8801 N. RIVIERA DRIVE, ORO VALLEY, AZ 85737, REQUEST FOR AN APPEAL OF ZONING CODE INTERPRETATION ZCI03-04, PERTAINING TO FREE-STANDING BUILDING PADS WITHIN THE ORACLE ROAD SCENIC CORRIDOR DISTRICT,ISSUED BY THE PLANNING AND ZONING ADMINISTRATOR. (PARCEL #225-12-065A) LOCATED ON THE NORTHEAST CORNER OF ORACLE ROAD AND HARDY ROAD, ORO VALLEY,AZ 85737. Chairman Kessler swore in the witness that was intending to testify. Barry Gillaspie, 8801 North Riviera Drive, reported that his property was adjacent to the proposed development and was aggrieved by the interpretation of the ZCI03-04 made by the Planning and Zoning Administrator. He believed that to move forward with the decision would not be in compliance with the Oracle Road Scenic Corridor District (ORSCOD), Section 10-107.C.3.a of the Town Zoning Code. He gave the following reasons why he was aggrieved by the decision and used the overhead projector to review the proposed development: • He believed the Eckerd's Drug Store was a free standing pad that did not meet the 50,000 square feet minimum requirements for a principal structure. • In the event that Phase II does not proceed, a substandard principal structure would be created. In addition, there is no requirement in the proposed development conditions that requires that the changes to Phase II of the development be submitted to the Development Review Board, Planning and Zoning Commission and Town Council. He explained that for these reasons he believed he had met the requirements that the interpretation was an error of law. • If the Eckerd's Drug Store was the principal structure as interpreted by the Zoning Administrator, the balance of the proposed development could not be built because it would be in violation of Chapter 10 Section 10-407.C.3.a of the Town Zoning Code. • Section 10-407.C.3.a states: "Establishment of free-standing building pads fronting on or directly accessible from Oracle Road is permitted only on sites of 5 acres or greater, with a minimum of 50,000 square feet of GFA (Gross Floor Area) in the principal structure required for the first such pad. Additional pads, requiring further increments of principal building GFA, may be permitted only by express Commission approval." Mr. Gillaspie stated that the Eckerd's Drug store did not meet this section of the codes requirement. • A letter of support received from Richard F. Counts, Vice President of the Community Sciences Corporation was read into the record. (See attached letter dated 12-15-03) • By creating the standard that the northwest restaurant pad is free standing the Zoning Administrator has approved three additional standing pads which require additional square footage in the principal structure as per Chapter 10 Section 10-407C.3.a.1, e. of the Town's Zoning Code. 01/27/04 Minutes, Board of Adjustment 3 • The pads for the restaurants and office restaurant clusters must go before the Planning and Zoning Commission for approval. This requirement of the Town Zoning Code was violated because the Planning and Zoning Administrator did not forward his proposal to the Planning and Zoning Commission. • There are many options o tions that could be used to develop the site but have not been explored or offered as a part of the proposal. In conclusion, he explained that for these reasons, he met the qualifications necessary to uphold his appeal. He felt that the interpretation was an error of law and exceeded the authority of the Planning and Zoning Administrator and considered the decision an act of abuse of the official's discretion and the decision was arbitrary and capricious. In answer to a question from Vice Chair Lewis, Barry Gillaspie explained that the issue was a matter of principle and considered the interpretation to be in violation of the ORSCOD ordinance. He explained that if the citizens could not rely on the Town to enforce the Code, future residents would not be afforded protection of the Code they rely on. Bryant Nodine, the Planning and Zoning Administrator gave a Power Point presentation of the site using the overhead projector and presented the following facts: • Basis of the Decision a. Eckerd's Drug Store does not fit the definition of a free-standing pad. b. If the Eckerd's Drug Store is a principal structure the additional buildings are permitted. c. The Planning and Zoning Administrator has the authority,per Section 10-401.C, to recommend standards to assure compliance with ORSCOD goals and objectives. d. The decision was within the authority of the Planning and Zoning Administrator. e. The interpretation was not arbitrary for the following three reasons: 1. As presented above, the interpretation was based on standard terminology and relevant sections of the Code. 2. The interpretation was based on the goals stated within the Oracle Road Scenic Corridor Overlay District. 3. The interpretation follows the standard within the Code related to interpretations. Namely,per Section, 1-102.A, that: "When the provisions of this Code are interpreted or applied, they shall be held to be the minimum requirements for the promotion of the public health, safety, and general welfare." Chairman Kessler opened the floor for public comment. Chairman Kessler swore in the witness that was intending to testify. Keri Silvyn, 1 South Church Avenue, a representative for Centres Incorporation explained that the company had expended large sums of money to create plans to meet the requirements of the Oro Valley Zoning Code and objectives of ORSCOD as well as address aesthetic concerns of the neighbors to the east. She reported that a development plan has been scheduled for Mayor and Council consideration on February 4, 2004 and are hopeful the company can proceed to move forward with the project. She stated that the administrator's interpretation had merit from the developers prospective for the following reasons: • From a legal standard the zoning administrator has the responsibility to interpret the Town's Zoning Code. • Any interpretation was required to be fair and reasonable and should be made in light of the purpose for which the regulations were enacted. 01/27/04 Minutes, Board of Adjustment 4 • To apply the 50,000 square foot requirement the development not only renders the property undevelopable for commercial uses but perverts the entire purpose of ORSCOD.. • With the restriction imposed by ORSCOD and the topographical constraints, it would not be possible to develop the property with commercial retail space. • The company can not create 50,000 square feet of retail space without creating a 2-story building. • The Town interpretation is consistent with the primary purposes of the ORSCOD,which is to provide view-shed corridors for mountain views, created aesthetically pleasing development along Oracle Road and not permit strip type development along the road. • The development, as proposed provides four separate buildings instead of one 50,000 square foot strip center. This layout helps to create an aesthetically pleasing development since the buildings are broken up to provides the view shed corridors that ORSCOD contemplates. • The developer's interest was to get as much retail space on the property as possible for obvious reasons. She explained that considering the parking restrictions and 100 foot setbacks and additional buffer yard for the neighbors to the east, the property could not be developed without creating a 2-story building. • If the 50,000 square foot requirement were applied to the site and developed,the results would be exactly the type of centers ORSCOD was trying to discourage. • If the Board adopts the interpretation Mr. Gillaspie is requesting, Centres Inc. would be prevented from developing the property in a way that is consistent with the natural topography of the site. The result would be a much more intense project with more grading, traffic and noise. • The Town's interpretation was a fair and reasonable interpretation that would allow the property to be developed as entitled for commercial uses. • The Town's interpretation and Centres Inc. proposed development provides a superior development with less impact on neighbors. • It is clearly within the discretion of the Town to make an interpretation, Ms Silvyn asked that the Zoning Administrator's decision be upheld. Chairman Kessler swore in the witnesses that were intending to testify. Conny Culver, 10503 North Fairway Vista Lane, questioned the wisdom and rationale of the interpretation of the administrator because it was arbitrary and capricious. She stated that she supported the appeal and asked that the Board reverse the interpretation. Carl Kuehn, 9250 North Calle Loma Linda, spoke in favor of the appeal and urged the Board to uphold the appeal because it was a very well reasoned and argued appeal. He stated that the administrator had made decisions relating to the Zoning Codes that he considered arbitrary. Nancy Martin, 11780 North Via De La Verbenita, spoke in support of the appeal and felt the Town needed to be consistent and adhere to all aspects of the Town's Zoning Codes and Ordinances. Helen Dankwerth, 11515 North Flyingbird Drive, agreed with the applicant that the proposed development did not meet the 50,000 square foot requirement for a principal structure and the p mandated ORSCOD requirements. She asked that the Board carefully consider their decision and its impact for the long term best interest for everyone. 01/27/04 Minutes, Board of Adjustment 5 Jim Kriegh, 40 East Calle Concordia, expressed concern regarding the cost of the interpretation made g by the administrator and felt that the interpretation of the Town Zoning Code as it applied to the development was incorrect and did indeed violate the Zoning Code requirements. Chairman Kessler closed the public hearing. Mr. gg Gillaspie stated that he was aggrieved because of the inability of the Town to enforce the Zoning p Code. He explained that it was very important to enforce the Code because it represented how the future of Oro Valley would be developed. Chairman Kessler reiterated that the Board's focus was to consider whether or not the applicant was aggrieved and has suffered special damages over and above the general public. MOTION: Vice Chairman Lewis moved to UPHOLD the decision made in ZC 103-04, finding that the appellant is not an aggrieved party and his appeal lacks merit based on the facts. Member Marlar SECONDED the motion. Discussion: Vice Chairman Lewis explained that in the realm of the applicant's presentation that he would not suffer anything differently from the general population in the surrounding area, and the applicant had no special standing to bring the appeal application forward and had not proven his case as far as merits. Member Marlar stated that he also questioned whether Mr. Gillaspie is actually an aggrieved party with special damages to his property or interest any more then the general public would be. He felt that there were some points revealed in the case which questioned whether or not Section 10-407.C.3 should have been applied or not to the 50,000 square foot minimum in its entirety. He explained that even though he was not convinced personally that the applicant did have standing, he believed that on the substance of the case presented, there was some merit to it. Chairman Kessler stated that there was merit to the fact that the Planning and Zoning Administrator does have the authority to recommend standards to assure compliance with the ORSCOD goals and objectives. She stated that in interpreting the case as he did, he had used his authority properly in the spirit of what was meant by the ORSCOD goals and objectives. ROLL CALL VOTE Chairman Kessler—aye Vice Chair Lewis—aye Member Marlar—nay Member S ch ann ep—aye MOTION carried, 3-1, with Member Marlar opposed. 2. CASE NO. OV 10-04-01 LEWIS AND ROCA LLP., KERI SILVYN AND FRANK S. BANGS JR., REPRESENTING CENTRES,INC., ONE SOUTH CHURCH AVENUE, SUITE 120, TUCSON, AZ 85701-1611,REQUEST FOR A VARIANCE FROM OVZCR SECTION 10- 407.C.3,REQUIRING A MINIMUM OF 50,000 SQUARE FEET OF GROSS FLOOR AREA IN THE PRINCIPAL STRUCTURE FOR THE FIRST SUCH PAD OF DEVELOPMENT, SUBJECT PROPERTY: (PARCEL #225-12-065A) NORTHEAST CORNER OF ORACLE ROAD AND HARDY, ORO VALLEY,AZ 85737. 01/27/04 Minutes,Board of Adjustment 6 Mark Langlitz, Town Attorney explained that in view of the decision made by the Board in upholding g the decision made by the Town's Planning and Zoning Director, there would be no need to hear the variance request at this point. Keri Silvyn asked that Item 2 be continued for 60 days to allow the appeal time period to lapse. MOTION: Member Schannep moved to CONTINUE Case No. OV 10-04-01 for 60 days to allow the appeal time period to lapse. Vice Chair Lewis SECONDED the motion. Motion carried, 4-0. PLANNING AND ZONING UPDATE Bryant Nodine gave a brief update of upcoming meetings and projects. 1. The Planning and Zoning Commission will be considering the following projects over the next few months: • Steam Pump Ranch Development. • Work Plan. • Capital Improvement Plan project. 2. The Highway User Funds would be used to improve &maintain the road in the Town. 3. The Development Impact Fee Funds have been programmed through the Regional Transportation Plan to be used for larger projects such as the First Avenue and Pusch Ridge improvement and Pusch View Extension. Chairman Kessler announced that at the next meeting Vice Chair Lewis would serve as Chair and Member Schannep will serve as Vice Chair. ADJOURNMENT Chairman Kessler adjourned the meeting at 5:16 p.m. Respectfully submitted, i !Jo =i Linda Hersha, Secretary II